Grounds for Divorce

In order for a divorce to be pronounced, the judge must be satisfied that there has been an irreparable dissolution in the spiritual and material communion of the spouses. In other words, the judge is required to ascertain the irretrievable breakdown of the marriage, which must have its cause in one of the grounds indicated in Article 3 of Law No 898/1970 (the “Italian Divorce Law”). The list is exhaustive, with the consequence that the divorce cannot be pronounced if none of them is met.

The grounds for divorce can be divided into the following two groups:

• facts that coincide with the commission of specific crimes:
1. one of the spouses is convicted, with lifelong or long sentences;
2. incest;
3. crimes against sexual freedom;
4. crimes linked to prostitution;
5. murder or attempted murder of the other spouse or children; or
6. abuse or injuries against the other spouse or children; and
• facts that are incompatible with the persistence of the spiritual and material communion of the spouses:
1. a period of protracted legal separation;
2. the foreign spouse has obtained a divorce or a declaration of annulment of the marriage abroad, or has contracted a new marriage abroad;
3. failure to consummate the marriage; or
4. one of the spouses undergoes gender reassignment surgery.

This list is more apparent than real, given that – in daily practice, in almost all cases – the most common ground for divorce is an uninterrupted personal legal separation lasting for six months in the case of mutual separation, or one year in the case of judicial separation.

Divorce can be obtained through a judicial process or through ADR.

Judicial Process

Recent reform in Italy

A relatively recent reform (the so-called Cartabia reform) of civil proceedings in Italy (contained within Law No 206/2021 and Legislative Decree No 149/2022) has had a significant impact on family law matters, with significant changes for legal separation and divorce proceedings started after 28 February 2023.

Divorce proceedings when both parties apply for a consent order

If the spouses have reached an agreement on all terms and conditions of their divorce (children’s custody, visitation rights, maintenance, house, etc), they can submit a joint petition in court. If the agreement between the spouses is fair and does not conflict with the interest of the children, the court rules on the divorce in accordance with the parties’ agreement. The parties can ask to replace the hearing in their presence with a hearing on papers, without having to go to court. Such procedure normally lasts approximately three or four months.

In Italy, it is now possible for the spouses to file a joint petition for both legal separation and divorce cumulatively; this means that the joint petition contains the spouses’ agreements for both the legal separation and the divorce (Articles 473-bis.49 and 473-bis.51 of the Italian Civil Procedure Code). Nevertheless, an uninterrupted legal separation before divorce is still mandatory. This means that, when legal separation and divorce are claimed with the same petition, the court – within the same proceedings – rules on the legal separation and can only decide on the divorce after six months have elapsed (this was confirmed by Supreme Court Decision No 28727/2023). Such procedure normally takes about eight or nine months.

Divorce by litigation

If the spouses do not reach an agreement and a divorce has to be granted by the court, the procedure is as follows.

• After the submission of the petition, a hearing is scheduled within 90 days. Before the first hearing, both the petitioner and the respondent are given some deadlines within which they are supposed to lodge all their reciprocal claims, requests for investigation by the court and the relevant documents with the court.
• Following the first hearing, if the judge considers that the case is ready to be decided without any further investigation, the final decision can be immediately ruled. If, on the other hand, the judge considers that a more in-depth investigation is required, interim orders are issued (including visitation rights and maintenance for the children and eventually for the spouse). Once further investigations are closed, the judge orders the submission of final defences and the final decision is ruled.

The reform of the civil proceeding rules has led to rather pressing timeframes for proceedings. This means that, depending on the complexity of the case, such proceedings take between six months and a year.

The possibility to submit a cumulative request for both legal separation and divorce is also permitted in case of litigation between the spouses. This means that the request for divorce can be lodged with the court (by both the petitioner and the respondent, or by only one of them) together with the request for legal separation (Article 473-bis.49 of the Italian Civil Procedure Code). When legal separation and divorce are claimed with the same proceedings, the court rules on the legal separation and can only rule on the divorce once one year has elapsed.

The procedure for divorce is the same for religious marriages and civil marriages. A religious marriage has civil effects in Italy if it is celebrated according to the Catholic rite or if it is celebrated in Italy before a minister of a faith that is recognised in Italy by a bilateral agreement. The only difference between ending a religious marriage or a civil marriage by divorce lies in the name used:

• Cessazione degli effetti civili del matrimonio – if the marriage was celebrated in front of a Catholic priest or a minister of a faith with a bilateral agreement with the State; or
• Scioglimento del matrimonio – if the marriage was celebrated in the municipality or in front of a minister of a faith without a bilateral agreement with the State.

Service

According to the Italian Civil Procedure Code, service is generally dealt with by a bailiff. The recent reform of civil proceedings in Italy (contained within Law No 206/2021 and Legislative Decree No 149/2022) has provided for new rules relating to service, according to which lawyers can also deal with service (in the cases and in the way stated by the law).

When a judicial document has to be transmitted abroad and an EU member state is involved, EU Regulation 1784/2020 applies; when a judicial document has to be transmitted abroad and a non-member state is involved, the Hague Service Convention of 1965 applies. When the Hague Service Convention does not apply and there are no bilateral agreements, the Italian Civil Procedure Code states that service is made by registered mail addressed to the recipient, and a copy of the document is also delivered to the Ministry of Foreign Affairs (Article 142 of the Italian Civil Procedure Code).

ADR

Collaborative practice (convenzione di negoziazione assistita)

As provided for in Decree Law No 132/2014 converted into Law No 162/2014, this procedure offers spouses the possibility of divorcing by reaching a mutual agreement, without lodging a petition with the court but with the (mandatory) assistance of (at least) one lawyer for each of the spouses.

The procedure applies whether or not children are present.

Extensive collaboration by the parties, disclosure of their assets, and (almost) absence of conflict are necessary.

The agreement reached by the parties with the assistance of the lawyer is subject to scrutiny by the public prosecutor. An agreement will be authorised if it is in the best interest of the children. If there are no children, the public prosecutor’s check is purely formal.

Once the agreement is authorised and lodged with the Italian public records, it has the same effects as a court order.

Agreement signed before the mayor

As ruled by Decree Law No 132/2014 converted into Law No 162/2014, this procedure offers the possibility for the parties to divorce by reaching a mutual agreement, without lodging a petition with the court. The assistance of a lawyer is not mandatory.

The procedure only applies if there are no children, and it cannot include any clause concerning the transfer of any assets between the spouses. The mayor’s check is merely formal. Once the agreement is authorised and registered with the Italian public records, it has the same effects as a court order.

Other Processes

There are other processes for ending a marriage in Italy. By way of example, according to the Italian Civil Code, spouses can obtain the annulment or nullity of a civil marriage, which is an ordinary civil procedure, if:

• the conditions provided by Italian law for matrimonial capacity are not met (ie, being unmarried, being adults, not being relatives, not having been charged with the murder of the other spouse’s previous husband/wife);
• there was a vice of consent;
• the parties did not have legal capacity; or
• the marriage was simulated.

If the marriage was celebrated according to the Catholic rite, the nullity of the marriage can also be ruled by the ecclesiastic courts. The decision of the ecclesiastic court must be recognised in Italy by proceedings for the “exequatur” of the decision, which take place in front of the court of appeal of the place where the marriage was celebrated.

Judicial separation does not end the marriage. As a matter of fact, the parties remain married – although some of the duties of marriage cease (ie, the duty of cohabitation and fidelity), some continue (ie, educating and maintaining the children) and some change (ie, maintaining the spouse). During the period of legal separation, the wife may continue to use the husband’s surname that was acquired with the marriage. The community of assets regime (if applicable to the marriage) ends. Inheritance rights survive.

Legal separation proceedings are very similar to the divorce proceedings outlined earlier.

Same-Sex Couples

Same-sex couples are not permitted to marry in Italy but can constitute a civil union. The civil union ends when one of the parties declares their willingness to end the civil union in front of the registrar. After three months, a petition is lodged with the court by a lawyer. During the hearing, both parties are asked to confirm their willingness to dissolve the civil union.

The judicial phase can be replaced by the collaborative practice.

According to Article 3 of EU Regulation 1111/2019, which applies to cases lodged with the court on or after 1 August 2022 (EU Regulation 2201/2003 applies for cases initiated before that date), Italian jurisdiction is grounded if:

• the spouses are habitually resident in Italy or their last habitual residence was in Italy (insofar as one of them still resides there);
• the respondent is habitually resident in Italy;
• in the case of a joint application, either of the spouses is habitually resident in Italy;
• the applicant is habitually resident in Italy, provided that they resided there for at least a year immediately before the application was made;
• the applicant is habitually resident in Italy, provided that they resided there for at least six months immediately before the application was made and is an Italian national; or
• both the spouses are Italian nationals.

If the criteria established by EU Regulation 1111/2019 are not relevant for the determination of the competent jurisdiction, Law No 218/1995 (the “Italian International Private Law”) applies, according to which Italian jurisdiction exists if (Articles 3, 9 and 32):

• one of the two spouses has Italian citizenship;
• the celebration of the marriage took place in Italy, with a formal celebration provided for by Italian law;
• the respondent is resident or domiciled in Italy; or
• domestic Italian rules ground Italian jurisdiction.

All the criteria developed by the EU Regulation and the Italian International Private Law in order to establish jurisdiction revolve around the following concepts.

• Habitual residence ‒ this refers to the place where the party has established the habitual or permanent centre of their interests. It assumes relevance as the place of effective residence (understood as the place of the concrete and continuous development of personal and possibly working life) on the date of submission of the application, and not the place formally mentioned within the registry. The concept of habitual residence combines an objective element (stability) and a subjective element (intentionality), and has a main factual character, meaning that it has to be reconstructed based on the concrete case.
• Citizenship ‒ this refers to the legal status of a member of a State, with the assumption of a set of rights and obligations.
• Domicile ‒ the main centre of the business and interests of a person. This does not necessarily coincide with the place where a person de facto resides.

Each party can contest jurisdiction, as can the judge (on their own motion). The issue of jurisdiction has to be decided before the merits of the case, which can only be decided if Italian jurisdiction is correctly established.

Lis Pendens

According to Article 20 of EU Regulation 1111/2019, where two proceedings between the same parties are instituted before an Italian court and before the court of another EU member state (lis pendens), and if the foreign proceedings started first, the Italian court (second seized) shall on its own motion stay proceedings until the jurisdiction of the foreign court (first seized) is established. If the jurisdiction of the foreign court is established, the Italian court shall decline jurisdiction in favour of the foreign court. If the jurisdiction of the foreign court is declined, the Italian judge can decide the case. This rule also applies if a separation proceeding and a divorce proceeding are simultaneously pending in Italy and in another EU member state.

The factor taken into account by the Italian judge in deciding whether to issue a stay order is the chronological criterion.

On the other hand, when the court first seized is the court of a non-member state (according to the Italian International Private Law), the Italian court shall stay proceedings if the Italian judge believes that the foreign decision may produce effects and be executed in Italy. If the foreign court declines jurisdiction or if the foreign decision cannot produce effects in Italy, the Italian judge can decide the case. This rule only applies if two identical proceedings are pending in Italy and in the foreign non-member state, meaning that it does not apply if separation proceedings and a divorce proceeding are simultaneously pending.

Same-Sex Couples

Same-sex couples are not permitted to marry in Italy, but they can enter into a civil union. Italian jurisdiction for the dissolution of a civil union is governed by the Italian International Private Law, Articles 3 and 32-quater of which state that Italian jurisdiction is established if:

• the respondent is resident or domiciled in Italy;
• one of the parties is an Italian citizen; or
• the civil union was established in Italy.

Finance issues include:

• maintenance obligations; and
• the matrimonial property regime.

The grounds for jurisdiction for commencing financial proceedings are ruled by two different EU Regulations.

Maintenance Obligations

According to Article 3 of EU Regulation 4/2009, Italian jurisdiction is established if:

• the defendant is habitually resident in Italy;
• the creditor is habitually resident in Italy;
• Italian courts have jurisdiction to entertain proceedings concerning the status if the matter relating to maintenance is ancillary to those proceedings (unless that jurisdiction is based solely on the nationality of one of the parties); or
• Italian courts have jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings (unless that jurisdiction is based solely on the nationality of one of the parties).

Article 4 of EU Regulation 4/2009 gives the parties the option to choose Italian courts to be competent in matters of maintenance obligations between spouses/ex-spouses (electio fori). Italian courts can be chosen if:

• they have jurisdiction to settle the dispute in matrimonial matters; or
• Italy is the member state of the spouses’ last common habitual residence for a period of at least one year.

These conditions have to be met at the time the choice of court agreement is concluded, or at the time the court is seized. The choice of court agreement will have to be in writing.

Italian courts can also hear financial claims after a foreign divorce. The clauses mentioned in a foreign divorce concerning maintenance (in favour of the children or in favour of the spouses) can always be revised if:

• the divorce is recognised in Italy;
• Italian jurisdiction is established;
• new circumstances arise; or
• spousal maintenance was not determined as a lump sum.

Matrimonial Property Regime

Jurisdiction in matters of the matrimonial property regime is defined by EU Regulation 1103/2016, which applies to legal proceedings instituted on or after 29 January 2019. According to Article 5 of the Regulation, where Italian courts are seized to rule on an application for divorce pursuant to EU Regulation 1111/2019, an Italian court shall have jurisdiction to rule in matters of the matrimonial property regime arising in connection with that application. Nevertheless, Italian jurisdiction in matters relating to the matrimonial property regime shall be subject to the spouses’ agreement where the Italian courts that are seized to rule on the application for divorce are:

• the courts of the state in which the applicant is habitually resident and the applicant had resided there for at least a year immediately before the application was made;
• the courts of the state of which the applicant is a national and the applicant is habitually resident there and had resided there for at least six months immediately before the application was made;
• seized in cases of the conversion of a legal separation or divorce; or
• seized in cases of residual jurisdiction.

Each party can contest jurisdiction, as can the judge (on their own motion). The issue of jurisdiction has to be decided before the merit of the case, which can only be decided if Italian jurisdiction is correctly established.

Lis Pendens

As is the case for proceedings concerning status and those relating to maintenance obligations and the matrimonial property regime, where proceedings involving the same cause of action and between the same parties are brought in the courts of different EU member states, any court other than the court first seized shall, on its own motion, stay its proceedings until such time as the jurisdiction of the court first seized is established (Article 12 of EU Regulation 4/2009 and Article 17 of EU Regulation 1103/2016).

Where the jurisdiction of the court first seized is established, any other court shall decline jurisdiction in favour of that court.

The above-mentioned rule on lis pendens does not apply if the court first seized is that of a non-member state, in which case the lis pendens mechanism is regulated by Article 7 of Law No 218/1995.

Spousal Maintenance

Financial issues in terms of maintenance between spouses are dealt with in legal separation or divorce proceedings. The legal separation/divorce judge can only grant maintenance as a sum paid monthly.

The following applies to spousal maintenance.

• If the spouses reach an agreement, they can submit a joint petition in court. If the agreement is fair, the court rules on financial issues according to the parties’ agreement. Such procedures normally last approximately three or four months.
• If the spouses do not come to an agreement and a judicial divorce is necessary, proceedings progress as follows.
1. After the submission of the petition, a hearing is scheduled within 90 days. Before the first hearing, both the petitioner and the respondent are given some deadlines within which they are supposed to lodge all their reciprocal claims, requests for investigation by the court and the relevant documents with the court.
2. Following the first hearing, if the judge considers that the case is ready to be decided without any further investigation, the final decision can be immediately ruled. If, on the other hand, the judge considers that a more in-depth investigation is required, interim orders are issued (including visitation rights and maintenance for the children and eventually for the spouse). Once further investigations are closed, the judge orders the submission of final defences and the final decision is ruled.

The reform of civil proceedings has led to rather pressing timeframes for proceedings. This means that such procedures normally last between approximately six months and one year, depending on the complexity of the case.

Division of Assets

In order to divide their common assets (if any), the spouses have to lodge a petition in court, separate from legal separation or divorce proceedings.

Service

According to the Italian Civil Procedure Code, service is generally dealt with by a bailiff. The recent reform of civil proceedings in Italy (contained within Law No 206/2021 and Legislative Decree No 149/2022) has provided for new rules relating to service, according to which lawyers can also deal with service (in the cases and in the way stated by the law).

When a judicial document has to be transmitted abroad and an EU member state is involved, EU Regulation 1784/2020 applies; when a judicial document has to be transmitted abroad and a non-member state is involved, the Hague Service Convention of 1965 applies. When the Hague Service Convention does not apply and there are no bilateral agreements, the Italian Civil Procedure Code states that service is made by registered mail addressed to the recipient, and a copy of the document is also delivered to the Ministry of Foreign Affairs (Article 142 of the Italian Civil Procedure Code).

Matrimonial Property Regime

The matrimonial property regime governs property acquired by the spouses during the marriage. Italian law provides for two different types of matrimonial property regime:

• comunione dei beni (community of assets regime); and
• separazione dei beni (separation of assets regime).

The matrimonial property regime applicable to the marriage does not interfere with the effects of legal separation/divorce between the spouses in terms of maintenance obligations.

• The statutory matrimonial property regime is the community of assets regime (Article 159 of the Italian Civil Code), which applies if the spouses do not make a different choice. According to Article 177 of the Italian Civil Code, all property acquired by the spouses after their marriage, whether individually or together, is part of the community of property, with the exception of some personal property (such as assets received as a gift or inheritance, or personal effects or assets that are used for the exercise of the spouse’s profession). The assets acquired by each spouse before the marriage remain personal property even if the community of assets regime applies.
• The separation of assets regime is entirely different from the default regime: if the separation of assets regime is elected, each spouse maintains exclusive ownership and the right to use and manage property acquired before and after the marriage without any exception (Article 215 of the Italian Civil Code). Only chattels whose exclusive ownership is not proved are considered as joint property (Article 219 of the Italian Civil Code).

At the time of the death of one of the spouses or at the time of the legal separation, the community of assets regime dissolves and the spouses are supposed to divide the common property, if any, equally (50/50). The division of the spouses’ eventual common assets must be dealt with in ordinary proceedings (not within legal separation/divorce proceedings).

If the separation of assets regime applies, Italian law does not allow for an equitable distribution of the assets between the spouses upon divorce. This means that, during legal separation or divorce proceedings and if Italian law applies, the judge has no power to split or reallocate assets or resources between the spouses.

Choice of Regime

In Italy, it is possible to choose the matrimonial property regime at any time. According to Article 162 of the Italian Civil Code, the choice of the separation of property regime may be declared during the celebration of the marriage, or made before the marriage or after the marriage itself, by drawing up a specific deed called convenzione di separazione dei beni. In order to be valid, such convenzione must be concluded as a notarised deed in the presence of two witnesses. If the agreement is not concluded as a public deed (meaning that it does not fulfil the requirements as to form contained in Article 162 of the Italian Civil Code), it is null and void.

Trusts

The Hague Convention on the law applicable to trusts and their recognition concluded on 1 July 1985 entered into force in Italy on 1 January 1992. However, trusts are not regulated by Italian law, and the courts’ approach to them is quite uncertain.

Sum Paid Monthly

As mentioned in 2.2 Service and Process, the only decision an Italian judge can make on financial issues is the provision of a monthly maintenance payment, in both legal separation and divorce. The weaker spouse (usually, the wife) is entitled to receive spousal maintenance from the stronger spouse if there is financial disproportion between them.

Spousal support awarded by the Italian judge during legal separation/divorce proceedings does not have the scope to share or distribute the spouses’ wealth and assets.

• Spousal maintenance granted within legal separation proceedings is called assegno di mantenimento (Article 156 of the Italian Civil Code) and has an assistance function. It serves to provide financial support to the weaker spouse – who has no means or who is incapable of obtaining them – so that they can maintain the standard of living enjoyed during the marriage. Spousal maintenance during legal separation is not awarded if the claimant is considered “guilty” for the separation.
• Maintenance granted within divorce proceedings is called assegno divorzile (Article 5 of the Italian Divorce Law). In Italy, a milestone decision of the Italian Supreme Court (Decision No 18287/2018) modified the grounds of spousal maintenance in the case of divorce, with the Supreme Court stating that spousal maintenance during divorce has to be granted in favour of the weaker spouse in order to allow them to be self-sufficient. If there is a disproportion between the finances of the spouses and the weaker spouse has no adequate means and cannot obtain them for objective reasons, the judge grants spousal support, taking into consideration criteria such as the parties’ contribution to the increase of the family’s assets and welfare, the sacrifices that the weaker spouse has made for the benefit of the family (eg, giving up work in order to take care of the children), their work capacity and age, and the duration of the marriage. This means that divorce maintenance in Italy now has a compensative nature as well as an assistance function.

During both legal separation proceedings and divorce proceedings, the judge rules on the financial interim order after the first hearing. This order is effective during the whole proceedings until the final decision (when it can be confirmed or modified on the basis of the result of the eventual investigation into the spouses’ finances made during the proceedings).

In the absence of a standard calculator/table/percentage, the quantum of the spousal support depends on the judge’s discretion. There is no maximum limit on the maintenance that can be ordered.

Provision of Information

The parties must provide relevant information about their income or assets in order for spousal support to be granted. In particular, according to the recent reform of civil proceedings in Italy (contained within Law No 206/2021 and Legislative Decree No 149/2022), in legal separation and divorce cases the spouses must provide:

• evidence of their own tax returns for the past three years;
• the documents concerning their property (eg, real estate, vehicles, boats) and shares in companies; and
• the statements of their bank accounts and investments for the past three years (Articles 473-bis.12 and 473-bis.48 of the Italian Civil Procedure Code).

Many courts in Italy also require the spouses to submit a “disclosure form”, in which they are each supposed to provide even more detailed information than is required by law (housekeepers, insurance policies, membership of clubs and associations, the availability of rental properties, the enrolment of children in private schools, etc).

If the evidence provided by the spouses is contested or if the judge considers it to be inaccurate, a further investigation into their income and assets can be ordered (with the help of the tax authorities if necessary).

Moreover, the judge may draw conclusions from the behaviour of the parties during the proceedings (eg, providing inaccurate or incomplete information on their own economic conditions), from the answers of the parties during formal questioning and from their unjustified refusal to allow inspections (Articles 473-bis.18 and 116 of the Italian Civil Procedure Code).

Modification

It is always possible to ask for the modification of legal separation/divorce spousal support if the circumstances of the spouses or the family change.

When making its decision on spousal support, the court is supposed to explain the reasons of the decision itself, which is effective rebus sic stantibus. At the request of each of the parties, if the reasons for the decision change on the basis of new facts that unexpectedly developed after the decision was made (eg, a worsening of the financial position of the debtor or an improvement in the financial position of the claimant), the court may revise spousal support.

Financial orders concerning spousal support issued during legal separation or divorce proceedings are never final unless the payment of a lump sum is made (Article 5, Section 8 of the Italian Divorce Law).

Lump Sum

The payment of a lump sum (known as an una tantum payment) instead of periodical maintenance can only be agreed by the parties themselves and only at the moment of the divorce (not at the moment of legal separation). The judge cannot order the payment of a lump sum on their own motion; nevertheless, so that the lump sum agreed by the parties definitively stops any financial claim between the spouses, the judge has to ascertain that its amount is fair (generally speaking, this check is only formal).

Prenuptial and postnuptial agreements dealing with the effects of a future legal separation/divorce (in terms of maintenance rights) are null and void in Italy. The most recent decisions on this matter include Supreme Court, 30 January 2017 No 2224, Supreme Court, 26 April 2021 No 11012, and Supreme Court, 28 June 2022 No 20745.

The restrictive perspective and the reasoning against the validity of such agreements can be summarised as follows:

• the effects of the divorce are effects of the marriage;
• the effects of the marriage are regulated in Italy by Article 160 of the Italian Civil Code, which prevents spouses from entering into agreements that have the effect of giving up or modifying the rights and duties deriving from the marriage; and
• therefore, the spouses cannot validly enter into an agreement with respect to maintenance rights subsequent to a divorce.

Agreements in contemplation of a future legal separation/divorce are considered to be against public order, as they violate the principle of the non-negotiability of rights in matrimonial matters.

In any case, the issue of the nullity of prenuptial/postnuptial agreements is a recurring topic of discussion in Italy, and certain academics have more than once incited the courts to change the consolidated interpretation. In recent years, there have been some isolated signs of openness (above all: Court of Torino, 20 April 2012 and Supreme Court, 24 February 2021 No 5065), and a change of the majority position of the courts is not excluded in favour of a newer and more modern approach.

While prenuptial/postnuptial agreements are null and void in Italy, the choice of the matrimonial property regime (the regime governing the property acquired by the spouses during the marriage) is admitted by law and does not interfere with the effects of legal separation/divorce between the spouses. The matrimonial property regime and legal separation/divorce effects are different issues that are to be dealt with separately.

The Italian system does not allow for the equitable distribution of assets between unmarried couples (even of the same sex) at the moment of the breakdown of the relationship. This means that, if Italian law applies, the judge has no power to split or reallocate assets or resources between the parties.

If there are common assets (ie, assets jointly purchased by the cohabitants), each party can ask for the division of these assets.

Moreover, according to Law No 76/2016, it is possible for cohabitants (even of the same sex) to sign a “cohabitation agreement” (as a public deed in front of a notary public or as a private agreement authenticated by a lawyer, in both cases registered at the municipality) specifying the election of the property regime and the expectation of financial rights and duties between them.

If the cohabitants did not enter into a cohabitation agreement, an Italian judge cannot award maintenance (paid monthly) to one of the parties, as unmarried parties are not able to ask for financial support from each other, no matter how long they have been together. (The parties are only entitled to ask for maintenance for children, which is not affected by whether the parents were married or not.)

In any case, if one of the parties is in a state of need when the relationship breaks down, the judge can award alimonies for a period proportionate to the duration of the relationship. Alimonies are not to exceed what is necessary for funding the survival of the beneficiary.

If spousal support is not paid by the spouse who is obliged to do so, maintenance credit can be enforced, as ordinary credits, through the enforcement of the assets of the debtors. The payment of spousal maintenance in Italy is guaranteed by the following methods provided for by Article 473-bis.36 and following of the Italian Civil Procedure Code for both legal separation and divorce:

• real or personal guarantees;
• registration of the legal mortgage on real estate;
• the seizure of assets; or
• an order against the spouse's third-party debtor (employer, tenant, etc) to pay the beneficiary spouse directly.

EU Regulation 4/2009 governs the enforcement of international financial orders, as follows:

• according to Article 17, a decision given in a member state bound by the 2007 Hague Protocol that is enforceable in that state shall be enforceable in another EU member state without the need for a declaration of enforceability; and
• according to Article 26, a decision given in a member state not bound by the 2007 Hague Protocol and enforceable in that state shall be enforceable in another member state when, on the application of any interested party, it has been declared enforceable there (the proceedings for the exequatur take place in front of the court of appeal).

Article 67 of the Italian International Private Law states that the exequatur for enforceability is requested if the decision is given in a non-member state.

The media and the press are able to report on family law matters but the names of the parties should be anonymised to protect their right to privacy. (This does not always happen in practice.)

In terms of mechanisms outside of the court process to assist parties in resolving their financial disputes, Italian law allows for mediation and collaborative practice (convenzione di negoziazione assistita). Arbitration in family law matters is currently not admitted in Italy.

Collaborative Practice

The procedure for collaborative practice is ruled by Decree Law No 132/2014 converted into Law No 162/2014, and offers the possibility for the spouses to divorce by reaching a mutual agreement, without lodging a petition with the court but with the (mandatory) assistance of (at least) a lawyer for each of the spouses.

The procedure is applicable in both the presence and absence of children. Extensive collaboration by the spouses, disclosure of the parties’ assets and the (near) absence of conflict between the spouses are necessary.

The agreement reached by the parties with the assistance of the lawyer is subject to scrutiny by the public prosecutor, and will be authorised if it is in the best interest of the children. If there are no children, the public prosecutor’s check is merely formal.

Once the agreement is authorised and lodged with the Italian public records, it produces the same effects as a court order.

Mediation

The procedure for mediation (ruled by Legislative Decree No 28/2010) is managed by a third and impartial person (mediator), who tries to solve the dispute between the parties and also suggests some solutions. If an agreement is reached, it produces the same effects as a court order once it is authorised by the court.

ADR methods are suggested by the courts. The parties are free to choose if they prefer to follow an ADR process or standard judicial proceedings. In any case, the lawyers assisting the spouses are obliged by Italian law to inform them that they can try to solve the dispute through ADR, before starting any proceedings.

According to Article 7 of EU Regulation 1111/2019, Italian jurisdiction in matters of parental responsibility is grounded if the child is habitually resident in Italy at the time the court is seized. Generally speaking, to safeguard the best interests of the child (which is the main factor the court considers when establishing jurisdiction), jurisdiction is first determined according to the criterion of proximity, as the judge geographically closest to the habitual residence of the minor is in the most favourable situation to assess measures to be taken in the interest of the minor.

The habitual residence of the minor is the place where the centre of their life and relationships is concretely located, and the place where the child has a certain integration in a social, educational and family environment. Habitual residence does not correspond to the place where the child is physically present or registered only. The judge has wide discretion in this regard.

Exceptions

There are some exceptions to this general rule.

• Lawful move (Article 8) – the courts of the member state of the child's former habitual residence shall retain jurisdiction for three months following the lawful move, to modify a decision on access rights given in that member state before the child moved, if certain conditions are met.
• Wrongful move (Article 9) – the courts of the member state where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another member state and certain conditions are met.
• Choice of court (Article 10) – the courts of a member state have jurisdiction if:
1. the child has a substantial connection with that member state;
2. the parties, as well as any other holder of parental responsibility, have agreed freely upon the jurisdiction, at the latest at the time the court is seized, or have expressly accepted the jurisdiction in the course of the proceedings; or
3. the exercise of jurisdiction is in the best interests of the child.
• Transfer of jurisdiction to a court of another member state (Article 12) ‒ the court of a member state having jurisdiction on the basis of the criteria of the Regulation can ask the court of another member state to assume jurisdiction if it considers that a court of another member state with which the child has a particular connection would be better placed to assess the best interests of the child in the particular case.

Finally, according to Article 11 of EU Regulation 1111/2019, where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of a choice of court agreement, Italian courts have jurisdiction if the child is present in Italy.

In relation to children not residing in an EU member state, jurisdiction in matters of parental responsibility is ruled by the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, which Italy ratified in 2015.

Child Arrangements

Parental responsibility arrangements include:

• custody;
• placement; and
• visitation rights.

If the parents are married, parental responsibility issues are decided within legal separation and divorce proceedings. If the parents agree on parental responsibility issues and the judge considers that the parents’ agreement adequately takes into account the best interests of the children, the agreement is approved by the judge within the final decision pronouncing legal separation/divorce. If the parents do not agree on parental responsibility issues, the decision on parental responsibility is up to the judge pronouncing the legal separation/divorce decision.

If the parents are not married, proceedings start concerning children’s issues only. Before the recent reform of civil proceedings in Italy (contained within Law No 206/2021 and Legislative Decree No 149/2022), there were two different procedures for dealing with parental responsibility issues for the case of married parents and non-married parents. Now, only one procedure exists.

The recent reform has expressly introduced – in the case of litigation insofar as parental responsibility issues are concerned – the duty for both parents to submit the so-called piano genitoriale to the court before the first hearing (Articles 473-bis.12 and 473-bis.16 of the Italian Civil Procedure Code). The purpose of this document is to provide the judge with relevant information concerning the children’s daily commitments and activities related to school, as well as their educational pursuits and extracurricular activities, regular relationships and vacations normally enjoyed. This information will enable the judge to better evaluate the best interests of the child and make decisions taking into account the children’s past living situation and habits and the parents’ proposals for the future. The judge may also suggest a different plan.

In the evaluation of the interests of the children and in taking decisions regarding parental responsibility, the judge can ask for the help of a psychologist appointed in order to make a report on the family and the relationship between its members.

Custody

Joint custody is the default choice in Italy, whereby both parents continue to exercise parental responsibility over the children. According to Article 337-ter of the Italian Civil Code, decisions in matters of parental responsibility must have the primary purpose of protecting the children’s interest to maintain relationships that are as strong and frequent as possible with both parents and with both families. Joint custody means that the most important decisions in terms of the life of the children (school, education, health, city of residence, religion, etc) are taken together by the parents, while day-to-day and routine decisions can be taken separately.

Sole custody (Article 337-quater of the Italian Civil Code) is an exceptional choice (applied in the minority of cases) that can only be adopted when one of the parents appears to be unable or unfit to take care of the children or not suitable for the role (dangerous behaviour, unregulated lifestyle, mental health problems, etc) and, consequently, joint custody is not possible. The parent who has sole custody has the right to make the most important decisions for the children autonomously.

Placement

Even when joint custody is granted, in most cases the court identifies a parent (most frequently, the mother) with whom the children are supposed to prevalently live. In order to guarantee the children's habits and environment, as well as their safe and balanced development, the family home is supposed to be awarded to the parent with whom the children are placed, so that they can continue living there.

Visitation rights

The court also rules on visitation rights (Article 337-ter of the Italian Civil Code) in favour of the parent who does not live with the children; in recent years, the time that children spend with such parent has lengthened considerably. Generally speaking, each parent spends alternate weekends (from Friday to Monday) with the children. During the week, the parent who does not live with the children can spend one or two afternoons and overnight visits with them. Holidays can also be divided 50/50.

Child Support

According to Article 3 of EU Regulation 4/2009, Italian jurisdiction in matters of children maintenance is established if:

• the defendant is habitually resident in Italy;
• the creditor is habitually resident in Italy; or
• Italian courts have jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings (unless that jurisdiction is based solely on the nationality of one of the parties).

Child maintenance is decided within legal separation and divorce proceedings. If the parents agree on child maintenance, the agreement is approved by the judge within the final decision pronouncing legal separation/divorce. If the parents do not agree on child maintenance, the decision is up to the judge pronouncing the legal separation/divorce decision.

If the parents are not married, proceedings start concerning children’s issues only.

The procedure for granting child support in favour of children born in wedlock and those born out of wedlock is the same.

Ordinary costs

Child maintenance is a sum paid monthly by one parent to the other for the ordinary life needs of the children. The judge cannot order the transfer of any capital to the children, but the parents can agree to this and such an agreement will be accepted by the judge.

There is no calculator or table indicating the amount of child maintenance; the amount is determined at the judge's discretion. Nevertheless, the judge must consider the following criteria:

• the children’s needs;
• the standard of living enjoyed by the children while living with both parents;
• the time spent with each parent;
• the financial situation of both parents (taking into account the parties’ disclosure of assets and the investigation made during the proceedings); and
• the financial value of the domestic and caregiver duties carried out by each parent.

It is always possible to modify the amount of child maintenance if new circumstances occur (concerning either the parents or the children).

Extra costs

In addition to child maintenance, the parents are supposed to share extra costs for the children that are not included in the monthly paid maintenance. In Italy, many courts have adopted their own protocols determining which costs are included within child support and which costs are excluded. Generally speaking, extra costs not included in the monthly payment are school fees, medical expenses, and sports and travel costs (ie, the costs that are relevant, not foreseeable and not part of the daily maintenance of a child).

These costs should be agreed between the parents beforehand and then divided between them proportionally (the judge sets a certain percentage for each parent).

Duration

In Italy, parents are obliged to support their children even if they are older than 18 years old but not economically independent. If the child is of age and not independent but is not diligently looking for a job or not actively studying, the judge can revoke support in said child's favour. If the children are older than 18 years old but do not live with their parents, maintenance can be paid directly to the children.

Children can apply for financial provisions themselves after they reach the age of 18. If one of the parents is still living with the child, the parent can continue to ask for child support as well.

Each parent can ask for the intervention of the judge when they have opposing views on specific issues (schooling, medical treatment, religion, holidays, etc) and are not able to make a shared decision. The judge has the power to make orders, with which the parents have to comply.

The decisions of the judge are made with the best interest of the child as a priority; the judge can ask for the help of a consultant (ie, psychologist or doctor) if necessary. The judge's decision is discretionary, but there are some general orientations in case law that must be considered. By way of example, public school is preferred over private school if there is disagreement between parents.

To solve parental responsibility disputes, the judge may inform the parents that they can be assisted by a mediator; the parties may also jointly ask the judge to appoint an expert (eg, parenting co-ordinator). These professionals are intended to help the parties in making decisions, reducing conflict and complying with the court order, focusing on the children’s best interest. If there is extensive conflict between the parents, a curator of the minor can be appointed.

In deciding according to the best interest of the child, children over 12 years old (or less than 12 years of age if they are capable of understanding) have the right to be heard in all matters and judicial proceedings that concern their interests, and their opinions must be taken into consideration by the judge when making the decision (in any case, the judge may depart from them if the children’s views do not correspond to their best interests). In hearing the minors, the judge can be assisted by experts (ie, psychologists).

Parental Alienation

In the case of parental alienation (ie, the attitudes of one parent aim to distance the child from the other parent), the judge must investigate the concrete behaviours of the alienating parent and must make the consequent decisions in matters of parental responsibility with the aim of preventing such behaviours. The Italian Supreme Court has stated that the judge cannot ground any decision on the vague statement that the child suffers from Parental Alienation Syndrome (PAS): every single behaviour held by the alienating parent needs to be proved.

Sometimes, the judge states that the social services must take charge of the family and monitor the situation. According to Italian law, some sanctions (warning, payment of a sum, compensation for damages) can be imposed on the alienating parent (although in practice sanctions have a very limited application).

See 2.9 Alternative Dispute Resolution (ADR).

The media and the press are able to report on family law matters, but the names of the parties should be anonymised to protect their right to privacy. Children’s cases are very sensitive, so more attention is paid to anonymisation in such cases than in others.